Flannery Rogers v. Department of State Police (SPR 20251454)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 4, 2025 SPR25/1454 Allison Mondello Public Records Manager Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Flannery Rogers, Esq. appealing the response of the Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 20, 2025, Attorney Rogers requested “[1] [a]ll incident reports written regarding this traffic stop [and] [2] [t]he names of all troopers who responded to this traffic stop, copies of their body worn cameras and their cruiser cameras. . . .” Previous Appeals This request was the subject of previous appeals. See SPR25/0626 Determination of the Supervisor of Records (March 14, 2025) and SPR25/0895 Determination of the Supervisor of Records (April 11, 2025). In my April 11th determination, I found it unclear how the records requested fall within the definition of CORI, how the requested records are part of an investigation, and ordered the Department to provide Attorney Rogers with a response. The Department responded on May 14, 2025, withholding responsive records in their entirety under Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, Attorney Rogers appealed, and this case, SPR25/1454, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832 • Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Allison Mondello SPR25/1454 Page 2 June 4, 2025 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s March 28th and May 14th Responses In its March 28, 2025 response, the Department states it “has identified the following potentially responsive record(s) in its possession, custody, or control: Arrest/Incident/Offense Report; 2025-DTrp-l 552 [and] Body-Worn Camera/Cruiser Mounted Camera footage[.]” In its May 14, 2025 response, the Department withheld the responsive records in their entirety under Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure

Allison Mondello SPR25/1454 Page 3 June 4, 2025 of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its March 28th response, the Department states: Please note that the records you seek relate to an on-going and active criminal prosecution which is now pending in the Wareham District Court. Because of the pendency of criminal charges, the records you seek are not subject to public disclosure pursuant to G.L c. 4, §7, cl. 26 (f) which specifically exempts from public disclosure investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest…. The Department maintains that the investigative records at issue exclusively contain, or have interwoven throughout, information that, if disclosed, would prejudice any criminal trial in this matter by: 1) revealing non public information to the prospective jury pool, thereby narrowing the number of potential impartial jurors; 2) releasing indirectly the names of potential witnesses, and any statements thereto, thereby exposing them to public inquiry, chilling their cooperation, and/or

Allison Mondello SPR25/1454 Page 4 June 4, 2025 predetermining their testimony; and 3) providing a roadmap to the prosecutions legal strategies, thereby giving the defense an unfair advantage. For these reasons, it would not be in the collective public interest not to disclose these records in their entirety at this time. In its May 14th response, the Department states “the records requested relate to an on- going and active criminal prosecution. Therefore, based upon the forgoing and given the pendency of the criminal case, the Department denies the records. If the requested records are needed for the criminal case, please obtain them through the proper discovery process through the Wareham District Court/District Attorney’s Office.” In a telephone call between a staff attorney of the Public Records Division and the Department on June 3, 2025, the Department confirmed that the records reflect an ongoing investigation and how disclosure of any segregable portion of the records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest,” as required to withhold records under Exemption (f). Where the Department confirmed that the responsive records relate to an ongoing, active investigation and that any release would prejudice effective law enforcement, I find the Department may withhold the requested records from disclosure under Exemption (f) at this time. It should be noted that a change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Accordingly, I will now consider this administrative appeal closed. If Attorney Rogers is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Flannery Rogers, Esq.